Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Youfoodz, Aaron Collins, Lee Scrivener, Roisin O'Connor

Application for an FWC order to stop bullying - recusal application - apprehended bias - adjournment request - medical evidence not sufficient to support request - unclear how general practitioner reached conclusion - clarification requested and not provided - non-attendance and non-compliance with Directions - recusal application dismissed

• [1] On 4 February 2025, Mr Andrew Gilogley (the Applicant) made an application to the Fair Work Commission (the Commission) seeking stop bullying orders against Youfoodz (the Respondent), his employer, and three named individuals, Mr Aaron Collins and Mr Lee Scrivener and Ms Roisin O'Connor (Persons Named). It is uncontested that Mr Scrivener is no longer employed by Youfoodz. The Applicant has been provided with evidence of Mr Scrivener's resignation.

• [2] The Applicant filed his Form F72 on 4 February 2025. The Application notes alleged instances of bullying at work dating back to December 2023.

• [3] It is relevant to note that the Applicant has a physical injury which has been the subject of a workers' compensation claim. The Applicant claims that derogatory statements about his physical injury were made by Mr Collins and Mr Scrivener in December 2023. This includes comments alleging that the Applicant is impotent as a result of his medication. The Respondent denies this allegation.

• [4] The Applicant alleges that Ms O'Connor called him into a meeting in July 2024 and accused the Applicant on spreading rumours. The Respondent states in this regard that the Applicant was given a verbal warning not to engage in workplace gossip.

• [5] On 19 September 2024, the Applicant was served with a written warning for operating a forklift while under medical restrictions. The Applicant was invited to attend a disciplinary meeting on 12 December 2024. On the same day, the Applicant went on workers' compensation leave. The Applicant has not been in the workplace since 12 December 2024. The disciplinary investigation has been suspended while the Applicant is on leave.

• [6] The Applicant notes in his Form F72 that the disciplinary allegations made against him are vague and unparticularised, such that he cannot respond to them. This is a matter which may have been able to addressed in a conference in the Commission. However, as outlined below, the Applicant did not attend the scheduled conference in the Commission.

• [7] The Applicant requested that I recuse myself from this matter on 14 April 2025. The stated reason for requesting the recusal is as follows:

I kindly request the commission list this matter for the hearing of a recusal application, before commissioner Lake, on 22-04-2025 at 10am, which is the same date the commission set aside for a non compliance hearing.

I am still unwell and from previous correspondence with the commission I don't believe Commissioner Lake's is [sic] in a position too [sic] bring an impartial mind to determine my application.

This is in circumstances where my bullying claims are indivisible from my poor health - The certificates provided to the commission link my Majour [sic] depressive disorder to the bullying I have suffered such that Commissioner Lake's assessment of my medical condition and the impact that it has had on my capacity to prosecute the claims at this time suggests pre judging the bullying allegations themselves.

• [8] The Applicant provided written submissions in support of the recusal application.

• [9] The Applicant notes in his written submissions that he is seeking "the application might be adjourned until he can participate without impairment."[1]

• [10] The recusal application was listed for hearing on 22 April 2025 via Microsoft Teams. The Applicant was represented by his solicitor, Mr Stephen Byrne. The Respondent and Persons Named were represented by Mr Brodie Field of Irwell Law. Permission was granted for both parties to be represented under s.596 of the Act on the basis that it would not cause prejudice to either party. The Applicant himself did not attend the hearing. No medical certificate was provided to explain the non-attendance at the hearing. However, the Applicant's representative explained that circumstances of the Applicant's medical condition have not changed since the medical certificate of 21 March 2025 was provided to Chambers.

• [11] The background leading up to the recusal application and my reasons are set out below. In summary, I have not recused myself.

• [12] The matter was allocated to my Chambers on 21 February 2025 and was listed for a conference on 25 March 2025.

• [13] As per s.592 of the Fair Work Act, the Commission may hold conferences for the purposes of performing its functions. It is a usual practice in my Chambers, and amongst other members of the Commission, to hold a conference for an anti-bullying application to see if there is an opportunity to resolve the dispute between the parties without proceeding to a hearing.

• [14] On 10 March 2025, the Applicant emailed Chambers directly to state he was unable to attend the conference. He wrote as follows:

Due to medically imposed restrictions on my inability to work currently, And given the state of my troubling health at present, I don't feel up to engaging with Youfoodz and addressing these matters at this stage, I will clarify with my treating Doctor at my next medical appointment a suitable time-frame for engagements such as this, and update the Deputy president.

This whole process is causing me alarming amounts of anxiety, stress.

I would also like some time to locate additional support navigating the process to follow, as the blatant denial and misinformation received in Youfoodz's response is distressing_._

• [15] My Chambers sent the following response to the Applicant's email:

Please provide medical evidence explaining why you are unable to participate in the conference. The Deputy President will review the evidence and decide whether to adjourn the conference. Until then, the conference will proceed as scheduled. You may provide this evidence directly to Chambers.

• [16] On 10 March 2025, the Applicant provided a work capacity certificate ("1st work capacity certificate") which states that he has no functional capacity for work until 27 March 2025. It lists the Applicant's diagnoses as "Adjustment to Injury Counselling, Major Depressive Disorder secondary to Chronic Pain (Dr Duke)." The mechanism of injury is stated to be from lifting furniture downstairs.

• [17] On 19 March 2025, the adjournment request was denied. The email was sent from my Chambers directly to the Applicant as it pertains to sensitive information regarding his medical certificate. The email states as follows:

It is noted that the certificate states that you do not have capacity to attend work. The Deputy President's view that the certificate does not provide reasons for why you are unable to attend a conference in the Commission.

Further, and more importantly, this is your application. The conference is being conducted on 25 March 2025 in order to progress your application for a stop bullying order. If you wish to continue the dispute, then you will need to attend a conference in the Commission. If you do not feel up to addressing these matters, as you say in your email below, then it is open to you to discontinue your application and file another application at a later date.

Therefore, the request for an adjournment is declined and the conference will proceed on 25 March 2025.

• [18] I note that anti-bullying applications are not subject to a strict 21-day statutory limitation period like other applications under the Act. As long as the Applicant remains employed, he is free to make another application at a later time when he feels up to doing so.

• [19] On 20 March 2025, the Applicant provided a further work capacity certificate ("2nd work capacity certificate") and noted that his incapacity related "to the aggravation of this secondary injury, compounded by instances of victimization and bullying that I have experienced." The doctor notes that the mechanism of injury is "actions by managers." The work capacity certificate states that the Applicant's Major Depressive Disorder has been aggravated by workplace bullying.

"I apologize for any confusion. The initial medical certificate provided addressed the secondary injury sustained during my employment at Youfoodz. This secondary claim arose due to Youfoodz' failure to provide alternative or suitable duties, reflecting their lack of duty of care.

The attached certificate pertains to the aggravation of this secondary injury, compounded by instances of victimization and bullying that I have experienced."

I have requested an appointment with my treating GP tomorrow Moring [sic] 21-03-25 to request a medical certificate that is specific to the heightened anxiety and stress this whole process is causing me.

Nothing would make me happier than having the respondent stop bullying without the need to engage your Commissioner. But that didn't happen, my health suffered and I was left with no alternative but to bring the application.

However, bringing the application didn't arrest the abuse, more especially where the bullying is contested. That's where it stands, and I'm in no better a condition to run the application than I am to work.

Separately, your 3rd paragraph is gratuitous and doesn't appear to serve a purpose:

• one reading suggests I must discontinue a claim that has made me unwell? Is that right? Or, is it legal advice I'm given by the Commissioner? Can they do that? Or, have I got that wrong, too? I note the email was sent to me only, and not the respondent;

• looking at it again, it seems the Commissioner means to dismiss an application I want to pursue, which would inconvenience all parties, and is something about which the respondent should presumably be heard? Perhaps it is their application to make if they're dissatisfied with my certificate, which they haven't been before now, and which would be a change of position for them?

• [21] On 20 March 2025, a response was sent from my Chambers as follows:

Please note the Deputy President has discretion to decide whether the evidence of incapacity is an acceptable reason for non-attendance. As of yet, you have not provided acceptable evidence.

Please note, the Deputy President will place less weight on medical evidence in the form of a general practitioner's medical certificate where it is not clear how the practitioner reached their conclusion and where it appears that the practitioner simply repeated what the patient said to them. You will need to provide medical evidence explaining why you are unable to attend a conference with the Commission, noting that the conference is via Microsoft Teams (not in person), and that you will be placed in a separate breakout room so you will not even have to speak to the Respondents. The Deputy President will also allow you to have your camera off for the conference.

The below email was sent directly to you because it relates to sensitive information regarding your health and the Commission is reticent to reveal private information regarding health concerns. However, based on your email below, I have now included the Respondents and their representatives in this email.

I note that you have stated: "That's where it stands, and I'm in no better a condition to run the application than I am to work." You have also stated: "And given the state of my troubling health at present, I don't feel up to engaging with Youfoodz and addressing these matters at this stage". These statements suggest that you do not intend to prosecute your matter at this point in time.

The Deputy President will not grant an adjournment on the sole basis that you "don't feel up to" continuing with your application. The very nature of your application requires you to engage with the matters in relation to your bullying, either in a conference or in a hearing. If you cannot do so, then you should reconsider your course of action.

Under s.592 of the Fair Work Act, the Commission has broad powers to conduct conferences to attempt to resolve matters, including in relation to anti-bullying applications under s.789FC. The Deputy President holds conferences for anti-bullying matters so that the dispute can be resolved quickly without the need for a hearing. However, if you do not attend, then the matter will go to a hearing. You will be required to attend the hearing in person.

• [22] On 21 March 2025, the Applicant provided a medical certificate from his general practitioner ("general practitioner medical certificate") as follows:

Mr Andrew Gilogley is not able to attend [sic] Fair Work Tribunal [sic] on the 25/03/2025, due [sic] ongoing anxiety and increase [sic] stress related to his current conflict with his employer. this is manifesting itself as poor sleep, increased levels of agitation, decreased appetite and decreasing function in the family unit

It is my opinion that attendance at the Tribunal would increase the levels of anxiety and stress to a level that would cause Mr Gilogley harm. He is currently attending a psychologist to assist with his anxiety to reduce its affects [sic] and enable attendance at the Tribunal.

• [23] The Applicant also requested an adjournment so that he may seek legal advice:

Medical advise [sic] from my treating Doctor is to postpone.

He has been the treating doctor as requested by my employer.

As I have previously mentioned I wish to peruse [sic] the application, I wish to also involve legal advise [sic] to support me and to navigate what is to follow.

• [24] A response was sent by my Chambers on 21 March 2025:

Based on your previous communication, I have included the Respondent in this email.

In short, the Deputy President will not adjourn the conference on 25 March 2025 based on this medical certificate.

The medical certificate does not provide a medical diagnosis - it merely states that you have ongoing anxiety and increased stress in relation to your alleged conflict with your employer. This is not unusual. Many parties in the Commission feel heightened stress and anxiety in relation to their proceedings.

Adjourning the proceedings will likely only prolong the stress and anxiety you feel in relation to this process. The Deputy President's view is that it would be in the best interests of all the parties involved for this matter to be brought on quickly, so that the Deputy President may try and resolve the dispute without the need for the parties to go through a hearing, which will no doubt cause stress.

Further, it would be unfair to the Respondent to grant an open-ended adjournment, so that the Respondent is left in limbo, waiting until you feel ready to pursue your own application. I refer you to the manner in which the Commission must perform its functions under s.577 of the Fair Work Act:

(1) The FWC must perform its functions and exercise its powers in a manner that:

(b) is quick, informal and avoids unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations.

I note your doctor has stated "It is my opinion that attendance at the Tribunal would increase the levels of anxiety and stress to a level that would cause Mr Gilogley harm."

Please confirm whether your doctor was informed that:

1. The conference will be via Microsoft Teams, go [sic] you may attend from home;

2. You will be on in a separate breakout room to the Respondent, so you do not need to directly speak to the employer or the persons named; and

3. You will not be required to turn your camera on.

In relation to the request to adjourn to seek legal advice, as there is no requirement for parties to be represented in the Commission, the Deputy President will not grant an adjournment on this basis. You are, of course, free to attempt to gain legal advice prior to the conference, but the conference on 25 March 2025 will go ahead regardless.

• [25] It is not clear to me that in writing the medical certificate of 21 March 2025, the Applicant's doctor was informed either that it was the Applicant's own application which is causing him stress, and secondly, that accommodations had been made to assist the Applicant in attending, including that he can attend from the comfort of his own home, he does not have to turn his camera on and he does not have to speak to the Respondent directly. I note that the wording of the medical certificate is similar to the wording of the Applicant's email of 20 March 2025 where the Applicant talks about the "heightened anxiety and stress this whole process is causing [him]". If the Applicant wishes to rely on the evidence, it is necessary for the doctor to demonstrate that his conclusion was based on objective medical assessment which is within his area of expertise. It is also necessary for the doctor explain how he reached the conclusion that attendance in the Commission would cause harm rather than just saying that is his opinion.

• [26] No response was received from the Applicant in relation to this request for clarification.

• [27] The general practitioner also does not refer to the psychiatric diagnosis previously relied on by the Applicant. The certificate instead only lists symptoms of feelings of anxiety and stress. There was some debate in the hearing about whether the feeling of anxiety is a medical condition. I note that there are several discrete types of anxiety disorders - as opposed to a general feeling of anxiety which everyone experiences from time to time - listed in the DSM-V, but, on the evidence before me, the Applicant has not been diagnosed with an anxiety disorder. He has been diagnosed with Major Depressive Disorder.

• [28] Frankly, it is very common for parties, and people generally, to feel heightened stress and anxiety about their claims with the Commission. These feelings are not necessarily sufficient reasons for an adjournment. As this is the only reason provided by the doctor, I did not view it as a sufficient reason to adjourn. Prolonging the process with indefinite adjournments may make parties feel worse. I noted that the Commission is obliged to deal with matters in the manner prescribed in s.577 of the Fair Work Act. It was also noted that the Respondent may suffer prejudice if they are made to wait until the Applicant receives enough psychological treatment to feel ready to pursue his claim.

• [29] On 23 March 2025, the Applicant replied as follows:

Thank you for referring me to section s.577, which I read. It seems to concern the efficient management of commission processes, that necessarily excludes dismissing applications- There can't be efficient management of an application that is being dismissed.

I also looked at s.578, which elaborated on the considerations to which the commission should have regard in discharging its functions under section s.577. They include the physical capacity of parties before the commission to which I drew the commission's attention, in this instance when I sought an adjournment.

It is equally important to note that section s.587, which confers jurisdiction on the commissioner to dismiss applications cannot apply. S.577 is not any kind of proxy jurisdictional basis for the commission to dismiss applications which can't be dismissed under section s.587.

Once again I would ask for you to consider an adjournment and respectfully direct you to section s.589 for an interim order about the further conduct of this application. Again, s.589 is a basis for making interim orders, but the s.589 would be abused if it was relied on to dismiss an application.

I don't understand anyone to quibble with my physical disabilities at this time, and compounding them by forcing my application on at this time, I believe, constitutes discriminatory conduct in breach of the discrimination act as well.

Looking forward to an immediate response and thanking you in anticipation.

• [30] Noting the Applicant requested an immediate response, my Chambers sent the following email on 24 March 2025.

The Deputy President has considered your reasons below and maintains that the adjournment is denied for the reasons stated in the email from Chambers dated 21 March 2025.

Your application has not been dismissed. However, for your application to continue, you must prosecute it. Your behaviour and statements in correspondence are not consistent with prosecuting your application - in fact, you seem to believe that the application is an imposition on you, even though you brought it in the first place. This is frankly an astounding lack of insight. You are required to comply with the Commission's procedures, not the other way round.

I note you refer to s.589 in seeking an adjournment. Please clarify if you are seeking an adjournment or seeking interim orders - you refer to interim orders in your email below. These are not the same thing. An adjournment is a procedural decision. An interim decision is a decision like an interlocutory injunction. If you wish to apply for a stay of proceedings or an interlocutory injunction, you will need to file a Form F1 application seeking out the order you are seeking. The Deputy President cannot make a procedural or interim decision unless you apply for one, and you have not done so.

I note you have made allegations of disability discrimination and breach of the Discrimination Act. The Deputy President finds it incredible that you appear to be saying that requiring you to attend a conference for your application is discriminatory. Accommodations have been made for you to: attend from home, without the requirement to have your camera on and without having to speak directly to the Respondent.

In order for you to prove discrimination, you must first prove that you have a protected attribute. Then you must prove either direct or indirect discrimination. Direct discrimination involves proving that you were treated differently on the basis of your protected attribute. This is not the case, because the request for you to attend the conference was because you are the Applicant in this application, and not because of your alleged disability. Alternatively, to establish indirect discrimination you must prove that the Commission imposed an unreasonable requirement on you, which you are not able to comply with because of your alleged disability. It could not be the case that the requirement to attend a conference was an unreasonable requirement, as this is a standard practice within the Commission (and most tribunals and courts), and in any case, special accommodations were made to assist you in complying, including by waiving the requirement for you to be visible on your camera during the conference.

Please note, if you continue to press your allegations of discrimination by the Commission, then the Deputy President will treat your allegations as a recusal application on the basis that you are accusing the Deputy President of bias or improper conduct. You will be required to attend a hearing to deal with the recusal application.

• [31] The Applicant subsequently made a complaint under s.581A of the Act and suggested that I or my Associate were now the ones bullying him. The complaint is relevant to the recusal application because the Applicant alleges that as I am party to the complaint, it creates an appearance of bias.

• [32] After the Applicant failed to attend the conference, Directions were set down on 25 March 2025 for a Hearing on 8 May 2025 to determine whether stop orders should be granted.

• [33] The Applicant's submissions and evidence were due by close of business, 8 April 2025. The Applicant was reminded of the due date for his submissions on 7 April 2025. The Applicant did not file any submissions or evidence on 8 April 2025.

• [34] The Applicant did not communicate with Chambers and did not request an extension. However, I decided to grant the Applicant a week's extension until close of business, 15 April 2025. It was noted that the Applicant would need to explain his reasons for non-compliance and if he failed to provide submissions by the new date, the matter would be listed for non-compliance hearing, and I would consider dismissing the matter for want of prosecution.

• [35] On 14 April 2025, the Applicant requested that I recuse myself in the email set out earlier in this Decision.

• [36] My Chambers acknowledged the Applicant's email and invited the parties to provide submissions on the recusal application by close of business, 17 April 2025. The Applicant was reminded that the Directions for the substantive matter were still in force, and his submissions were due on 15 April 2025. The Applicant failed to provide submissions or evidence by close of business, 15 April 2025.

• [37] I note that the Applicant has made no further attempt to adduce further medical evidence or to ask for an extension on the due date for his submissions. I would note that, from an objective perspective, the Applicant has not demonstrated cognitive incapacity to prevent him from filing submissions and evidence. He is capable of producing lengthy emails arguing about the meaning of provisions of the Fair Work Act. The application itself contains some level of detail about how he says the Respondent has failed to comply with its policies and other work health and safety legislation. He also annexed to his Form F72 a document styled in the form of a statement of claim to sue the Respondent. I understand the Applicant was assisted in preparing his initial application by his solicitor. He is able to respond quickly via email and was also able to give instructions to his solicitor to prepare submissions for the recusal application in a timely manner.

• [38] The Applicant states in his written submissions that he had applied for the proceedings to be delayed until his condition improves.[2] On the correspondence before me, he only asked for an adjournment of the conference and then did not comply with the subsequent directions for the hearing without making a further adjournment or extension request.

• [39] I informed the parties that I would seek submissions on both the recusal application and whether the application should be dismissed for want of prosecution by close of business, 17 April 2025. However, the recusal application would be determined first.

• [40] In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 ('Ebner'), the High Court expressed the following:

".. a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide...

The apprehension of bias principle... [in its] application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[3]

• [41] In Woodside Energy Ltd v The Australian Workers' Union [2022] FWCFB 192, the Full Bench further articulated the principles for recusal applications on ground of apprehended bias:

[38] The applicable principles concerning apprehended bias are as stated in the High Court decision in Ebner v Official Trustee in Bankruptcy. In summary, a judge or tribunal member is disqualified if a fair-minded lay observer might reasonably apprehend that they might not bring an impartial mind to the resolution of the question they are required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. The application of the apprehension of bias principle requires two steps: first, it requires the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits. It remains necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances, and this is sometimes described as a third step.

[39] Some additional propositions are relevant to this appeal. First, disqualification on the ground of apprehended bias must be "firmly established", and a finding of apprehended bias is not to be reached lightly. Second, an apprehension that an issue may be decided adversely to a party does not constitute an apprehension that the issue might be determined other than impartially. Third, where apprehended bias is asserted on the basis of a previous expression of opinion on an issue by the decision-maker, consideration of whether the "logical connection" required by the second step identified in Ebner exists will require an analysis of the role and importance of that issue in the matter to be determined. Finally, where an apprehension of bias is said to arise by reason of prejudgment, the following principles stated by the Federal Court Full Court in Cabcharge Australia Ltd v Australian Competition and Consumer Commission apply:

"The test for apprehended bias is the same wherever it arises, although the context in which it falls to be applied will clearly affect how the test is applied. One particular occasion of apprehended bias is where it is said, as Cabcharge had alleged here, that the judge has relevantly prejudged matters in controversy. In this context, disqualifying bias results in a state of mind that is not open to persuasion. That is, in this species of apprehended bias, "[t]he state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 ... at 531-2 [71]-[72] per Gleeson CJ and Gummow J. That is, in such a case as the present, it must be firmly established that a reasonable observer might conclude that the decision-maker might not bring to his or her task an impartial mind by reason of prejudgment, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view: see Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 ... at 352 per Mason J."

Identification of factor which may lead the Member to decide the case other than on its merits

• [42] As a first step, the Applicant must identify what it is that may lead me to decide the case other than on its factual and legal merits.

• [43] There are essentially three overarching grounds from which the recusal application emanates - recusal on the basis of apprehended bias because of prejudging the medical evidence, recusal on the basis of apprehended bias because of legal error and recusal for reason of my interests being conflicted because I am involved in the s.581A conflict. The last ground will be dealt with separately. The Applicant refers to 5 examples of my conduct which he says gives rise to an apprehension of bias. These are:

1. My "rejection" of the medical evidence on 21 March 2025;
2. Making comments that many parties in the Commission feel stress and anxiety in relation to their claims,;
3. Asking for confirmation that the Applicant's doctor was informed that the conference is via Teams, that the Applicant would not be required to speak directly to the employer or persons named and would not be required to display his camera;
4. Appearance of bias by reason of interest and association; and
5. Alleged errors of law.

• [44] I will deal with the arguments related to the medical evidence and the adjournment request together.

• [45] The Applicant says in his email of 14 April 2025:

...This is in circumstances where my bullying claims are indivisible from my poor health - The certificates provided to the commission link my Majour [sic] depressive disorder to the bullying I have suffered such that Commissioner Lake's assessment of my medical condition and the impact that it has had on my capacity to prosecute the claims at this time suggests pre judging the bullying allegations themselves.

Logical connection between the matter identified and whether the application will be determined other than on its merits

• [46] The Applicant states that the "certificates provided to the commission link my Majour [sic] depressive disorder to the bullying I have suffered" and that I have made an "assessment" of his medical condition. I note the Applicant's written submissions state: "...the applicant's substantive application can only succeed if the Deputy President later accepts the medical evidence already rejected."[4]

• [47] The Applicant's argument appears to be that if I do not accept the certificates as evidence of incapacity, then I will not accept that any bullying has occurred at all because in his view, the two are "indivisible".

• [48] However, I have not "assessed" the Applicant's medical condition.

• [49] What has occurred, through the course of emails, is that I made it clear that I do not regard the work capacity certificates or general practitioner's medical certificate as sufficient evidence of incapacity to warrant an adjournment, particularly where special accommodations have been granted to the Applicant to support him in attending the Commission.

• [50] It is trite that failure to decide in the Applicant's favour previously is not by itself enough to conclude that the application would not be decided on its merits following a hearing.[5]

• [51] Further, the Applicant's claims about whether I have accepted the medical evidence have no clear rational connection with the question to be decided in a hearing for stop bullying orders.

• [52] I have not made a finding that the Applicant is lying about having Major Depressive Disorder, simply that the medical evidence provided by the Applicant is not sufficient to justify the adjournment requested.

• [53] To succeed in the substantive matter, the Applicant must establish that he has been "bullied at work" by the Persons Named within the meaning of s.789FD and that there is a risk that the Applicant will continue to be bullied at work.[6] In making the determination of whether the Applicant has been bullied at work, I will consider whether there has been repeated unreasonable behaviour by the Persons Named which creates a risk to health and safety.[7] This is an objective test. There is no need for me to find that the Applicant has an actual psychiatric injury in order to find that bullying has occurred. Furthermore, it is not necessary to determine the causation of that injury.

• [54] For example, in Application by Lydia Yew [2021] FWC 5946, Commissioner O'Neill (now Deputy President O'Neill) refused to make an order to produce documents relating to the Applicant's medical treatment for an anti-bullying matter. The order was refused, and Commissioner O'Neill gave the following reasons:

[15] I consider that the documents sought are not sufficiently relevant (either real, apparent or adjectively) to warrant the order sought. The question that I will need to determine in the substantive matter is whether the Respondents engaged in behaviour that amounts to bullying within the meaning of the Act. That task includes being satisfied that an individual or group of individuals repeatedly behaved unreasonably towards the Applicant, and that that behaviour creates a risk to health and safety. This is an objective test. It is neither necessary, nor necessarily relevant for the Applicant to establish that there has been actual harm to her health and safety.

[16] The Respondents acknowledge that the relevant test is objective but submit that in making the objective assessment as to whether the alleged conduct, if found, creates a risk to health and safety, I will necessarily have regard to the effect of that behaviour on the Applicant. However, I am also not satisfied that the detailed medical information sought is relevant, or necessary for the Respondents to be able to defend the application. In presenting its foreshadowed case that conduct was reasonable management action, it seems to me that whilst the emotional state and psychological health of the Applicant may be relevant in considering whether any conduct was reasonable management action, this would be assessed on the basis of the Respondents' knowledge of the Applicant's health (or manifestations) at the time of the conduct, and would not be assisted by obtaining detailed medical information after the fact.

• [55] Therefore, the Applicant has not established that by not adjourning the conference on the basis of the Applicant's evidence, a reasonable person would conclude that I will not bring an impartial mind to the hearing because the medical certificate presented by the Applicant does not have a clear logical connection with the question to be determined in the hearing.

• [56] The Applicant stated that I made an error of law by failing to give written reasons for refusing the adjournment request.[8] I noted a recent Full Bench decision of Construction, Forestry and Maritime Employees Union re BMD Urban Pty Ltd Enterprise Agreement 2023 [2025] FWCFB 21 discusses the requirement to give reasons for a procedural decision where there has been no formal hearing. That case involved a different context, a decision regarding whether to make an order to produce and a decision regarding witnesses, but the principles are still relevant to a decision on whether to adjourn:

[70] The statutory duty for the Commission to provide written reasons resides with s601 of the Act or otherwise by implication. Section 601 is set out above. Structurally, s601 applies to "decisions" not reasons (although reasons will often record a decision). Many decisions must be "in writing", although an express exception to the requirement for issuing written decisions are for decisions made under the Act "other than this Part [5-1 of the Act]".

[71] Pausing there, as the production order decision and witness attendance order decision were each under Part 5-1 of the Act, the Commissioner was not required to issue a written decision. Notwithstanding, he did so for both decisions.

• [57] I note the decision whether to adjourn is a procedural decision which falls under s.589 in Part 5-1 of the Fair Work Act. There is therefore no legislative requirement to provide reasons. It is not legislatively required to hold a hearing for such a decision, although I would have done so if the Applicant had expressly requested an indefinite adjournment or a stay of proceedings, rather than just an adjournment of the conference. Even though there is no requirement to provide written reasons for a decision of this kind, I did provide reasons for the decision not to adjourn. The Applicant's contention seems to be that he does not agree with those reasons.

• [58] The Applicant also alleges that I failed to take into account the considerations under s.578 relating to disability discrimination.[9] It is clear from the emails with my Chambers that the Applicant's condition was taken into account, and accommodations were made to assist the Applicant in attending. Therefore, I do not regard the suggestion that s.578 was not taken into account as being made out.

• [59] It is noted that the Applicant did not comply with the Directions to provide submissions and evidence in relation to the substantive hearing, despite being given a week's extension to do so. As the Applicant did not comply with the Directions, I informed the parties that I was considering dismissing the application for want of prosecution under s.587 of the Act.

• [60] In this regard, the Applicant's representative has argued that I am attempting to use "a breach of s.577" as a source of power to dismiss the application.[10] Section 577 was referred to in the email from Chambers to the Applicant with reasons why I would not adjourn. Section 577 contains several matters to be taken into account when exercising the Commission's functions. It is particularly relevant for Members to have reference to these matters when making procedural decisions about how the case should proceed. The Applicant's argument that I have found that he has "breached" s.577 is not made out on the evidence. The Applicant is not even capable of breaching s.577 as the obligations in that provision are placed on the Commission, not on him. On no fair reading of the email from Chambers of 21 March 2025 have I stated or implied that I am using s.577 as an independent source of power. It was instead a reference to the manner in which the Commission must perform its functions.

• [61] The Applicant suggests that by directing the parties to the leading cases to be addressed in their submissions, I was "confining the scope of the Applicant's submissions".[11] I directed the parties to the test in Ebner for recusal for apprehended bias. In relation to the factors to be addressed when considering whether to dismiss an application for want of prosecution, I referred the parties to the recent Full Bench decision of Priestley v Blackfisch Films Pty Ltd [2025] FWCFB 40. This does not give rise to a reasonable apprehension of bias. The references to specific cases were made to assist the parties in knowing what they needed to address, in the context of an Applicant who was at the time self-represented. It does not confine what other cases they may explore in their submissions.

• [62] The Applicant suggested that even considering whether to dismiss the application is an error of law. The Applicant relies on the Priestley decision in this regard. That case, the Full Bench considers the issue of whether s.587(1) of the Fair Work Act creates an implied power to dismiss applications for want of prosecution.[12] The Full Bench questions whether the provision should be given that interpretation,[13] but finds that it is not necessary to resolve the issue.[14] Based on this, the Applicant argues that considering whether to dismiss an application for want of prosecution is an error of law because it is not settled law that the Commission has such a power. I note that I have not made a decision to dismiss the application. The Applicant argues that this does not matter, even considering it is an error of law. I reject that the Full Bench's comments have the effect that even considering dismissing an application is an error. Secondly, the Applicant's representative stated in his oral submissions that the Commission should be given a power to dismiss applications for want of prosecution, as there are some cases, such as wilful non-compliance, where it will be manifestly warranted. On the Applicant's argument, there are cases where the Commission may or should have a power to dismiss for want of prosecution. In order to determine whether the applicant falls within one of those cases, the issue needs to be considered. It would only be a legal error if the decision was improperly made.

• [63] I have not found that there is any legal error identified by the Applicant which could give rise to an apprehension of bias.

• [64] The Applicant's argument for apprehension of bias derives from the fact that I did not view the medical certificates provided as sufficient evidence to warrant adjourning.

• [65] This apprehension of bias is not reasonable. The issue was with the quality of the evidence, rather than that I had formed a view that the Applicant has no medical condition at all, as suggested by the Applicant.

• [66] The Applicant suggests that I must accept the general practitioner's medical certificate and adjourn the proceedings because the certificates are "not contested".[15] This argument may have some merit if there was uncontested evidence relevant to a factual determination in substantive proceedings. But this is not the case. For procedural decisions, such as whether to adjourn a conference, and whether to adjourn proceedings indefinitely, it is a matter of discretion for the Commission to determine whether the evidence to support the request is acceptable. Even if the Respondent agreed to an indefinite adjournment (which they have not), I still have to be satisfied whether it is appropriate to adjourn, noting that I have obligation to conduct the proceedings in a way that is fair, just, quick and informal. I made it very clear that I was not satisfied that I should adjourn based on the certificates provided. I told the Applicant that I would not adjourn based on the medical certificate provided on 21 March 2025, and asked for further clarification about the certificate. The Applicant did not answer the question posed to him and made no attempt to provide further medical evidence.

• [67] The fact of the Applicant's apparent diagnosis of Major Depressive Disorder in the work capacity certificates is not by itself sufficient evidence to explain why he cannot attend a conference in the Commission. Further, the general practitioner's medical certificate does not address the point about why the Applicant cannot attend a conference via Teams, with accommodations. It does not explain how the doctor formed his view that attendance would cause harm. The certificate is not sufficient in my view to adjourn and I did not adjourn.

• [68] The Full Bench in Chopra v Al Siraat College Inc T/A Al Siraat College & Arain, Fazeel and Ors [2023] FWCFB 266 tangentially explored a similar scenario. The Applicant in that matter provided a medical certificate to the presiding Member of the Full Bench which stated that the Applicant was taking painkillers which impacted his cognitive ability.[16] The medical certificate noted that not adjourning would negatively affect the Applicant's mental health.[17] The medical certificate also provided detail of the doctor's "medical recommendation" that the proceedings should be adjourned and the Directions amended to provide the Appellant with an extension. [18] The Full Bench did not adjourn the hearing on the basis of the medical certificate. They wrote: "The medical certificate expresses opinions outside the remit of a general practitioner, in particular, in relation to the programming by the Fair Work Commission of applications before it. The Full Bench did not consider that the opinions expressed by the General Practitioner who issued the medical certificate are appropriate and nor did they demonstrate that reasonable grounds exist for an adjournment". I note in this case the Applicant stated that his doctor gave "medical advice" that the Commission should postpone the conference.

• [69] I noted in my email to the Applicant on 20 March 2025 that I would put less weight on medical evidence in the form of a general practitioner's medical certificate where it is not clear how the medical practitioner reached their conclusions and where it appears that they simply repeated what the patient said to them. It therefore should have been clear to the Applicant that his doctor would need to clearly explain how he reached his conclusions.

• [70] It is relevant to make reference by analogy to the principles for dealing with expert evidence. These principles are relevant because the Applicant appeals to the Commission to rely on these medical certificates because they come from someone who has specialist medical knowledge. Implicit in the Applicant's submission is the idea that reliance on the general practitioner's medical certificate cannot be questioned. This is not the case - medical certificates can be found not to be sufficient evidence where the medical practitioner's conclusions do not demonstrate that reasonable grounds exist for the adjournment, and where the opinions expressed are not clearly founded in medical opinion or are not within their expertise.

• [71] The Full Bench of the Commission has previously found that it may be relevant to refer to the principles for dealing with expert evidence where the person's evidence is put forward on the basis that they have specialist knowledge. For example, in AMWU & Ors v Wilmar Sugar Pty Ltd [2024] FWCFB 319, the Full Bench stated that even though the Commission is not strictly bound by the rules of evidence, the principles for dealing with expert evidence may still provide useful guidance in proceedings.[19] Relevantly in this case, the expert needs to state their reasoning and how they reached their conclusion. That conclusion must be founded in a scientific or intellectual basis which is within their area of expertise.[20] It is generally expected that the expert should note what information they have been given, and how they have used that information to draw their conclusions - they are expected to "show their working". In this case, it would be expected that if the Applicant wants to rely on this evidence in the Commission as either evidence of incapacity to attend or incapacity to comply with his Directions, at the very least, the Applicant's doctor would be able to say what information the Applicant has told him, details of his objective medical assessment of the Applicant, why attendance would cause harm, and why, in his medical opinion, that leads him to conclude that the Applicant can attend his medical appointments and discuss his bullying there but cannot attend the Commission at all, even virtually. The Applicant was asked for clarity about how the doctor formed his opinion and did not provide any clarification.

• [72] I note also that I have seen no direct evidence from a psychiatrist to support the adjournment, noting that the Applicant relies on the diagnosis of Major Depressive Disorder which is a psychiatric diagnosis which appears in the DSM-V.

• [73] While the Applicant's treating doctor is entitled to theorise as to the causation of the Applicant's aggravation, the Applicant's treating doctor is not qualified to determine whether the Applicant has been "bullied at work" within the technical sense of s.789FD of the Fair Work Act. This is both because the treating doctor has only heard one side of the story and also because it is a legal determination which is outside his area of expertise. Therefore, the Applicant cannot rely on this evidence, by itself, to "prove" he has been bullied in the substantive application.

• [74] The Applicant has made a complaint to the President of the Commission pursuant to s.581A. He argues that as the Applicant has made a complaint against me, there may be a perception that I have a conflict of interest as a result. The Applicant refers to Webb v The Queen[21] where Deane J said referred to categories of cases in which the appearance of bias may arise including from "interest" and "association".[22] I interpret His Honour's comments to be referring to where a judge's personal interests conflict with those that arise in the manner before them. I am not sure that the complaint under s.581A means that my personal interests are in conflict with my duties as a Tribunal Member. However, even if I am wrong in this interpretation, I would still reject this submission. If this submission were accepted, then any party to the Commission could simply make a complaint to effectively force a Member to recuse themselves. This would not accord with the duty of Members to sit.

• [75] For the reasons stated above, the Applicant has not established that it would be apparent to a reasonable person that I would not bring an impartial mind to the hearing. Noting I have an obligation to sit and determine with the matters which are allocated to me, I decline to recuse myself and the recusal application is dismissed.

• [76] As to the further conduct of this matter, it is relevant that the Applicant has said that the recusal application has gotten in the way of substantive matter.[23] I pause to note that the Applicant did not file his submissions and evidence in the substantive matter and that he initiated the recusal application by expressly asking me to recuse myself on 14 April 2025. Notwithstanding that point, I take it from this comment that the Applicant is anxious to proceed with his application.

• [77] I will vacate the current Directions for the hearing on the substantive matter and hold a Directions conference to discuss how the matter will proceed. I am open to determining the matter on the papers, although this may not be possible if the parties wish to have the benefit of cross-examination. I am also open to allowing the Applicant to provide written closing submissions, which may assist him.

• [78] However, I wish to be clear that I expect the Applicant to follow any new Directions that are set down and that any deliberate non-compliance may lead to a non-compliance hearing where I may consider whether to dismiss the application.

Neither am I satisfied on the current medical evidence that it is appropriate to grant an indefinite adjournment in the circumstances. This is a matter where some of the key events relied on by the Applicant occurred in December 2023. Further, the Applicant has not been at work since December 2024. I am conscious that extended delay may have the effect of denying both the Applicant and the Respondent of their right to have the matter be heard and resolved in a timely fashion.

B Field of Irwell Law for the Respondent and Persons Named

[1] Applicant's First Submissions on Recusal Application, page 6.

[2] Applicant's First Submissions on Recusal Application, page 2.

[3] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 344-345

[4] Applicant's First Submissions on Recusal Application, page 7

[5] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352.

[6] Section 789FF of the Fair Work Act 2009 (Cth)

[7] Ibid s.789FD.

[8] Applicant's Supplementary Submissions, Page

[9] Applicant Supplementary Submissions, page 4.

[12] Priestley v Blackfisch Films Pty Ltd [2025] FWCFB 40 at [25]

[15] Applicant's First Submissions on Recusal Application, page 3.

[16] Chopra v Al Siraat College Inc T/A Al Siraat College & Arain, Fazeel and Ors [2023] FWCFB 266 at [13].

[19] AMWU & Ors v Wilmar Sugar Pty Ltd [2024] FWCFB 319 at [36] to [40].

[21] [1994] HCA 30; (1994) 181 CLR 41

[22] Applicant Submissions page 7; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 74.

[23] Applicant Supplementary Submissions page 4.

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